0120142946
10-19-2016
Russ B.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Russ B.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120142946
Hearing No. 520-2013-00186X
Agency No. HSCBP228942012
DECISION
On August 19, 2014, Complainant filed an appeal from the Agency's July 24, 2014, Final Order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Border Patrol Agent at the Agency's Calais Station facility in Baring, Maine.
On September 13, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), age (49-50 during the incidents alleged), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On June 21, 2012, Complainant's supervisor (S1: Caucasian, 38 years old) denied Complainant's annual leave request for July 8-9, 2012;
2. On July 2, 2012, Complainant was ordered to return to the Station twice after leaving and driving thirty minutes or more both times en route to an ongoing operation;
3. On July 9, 2012, Complainant was subjected to offensive comments by management;
4. On October 19, 2012, Complainant received a low rating on his annual performance evaluation and was subsequently advised by management that the ratings were "generous;" and
5. On October 19, 2012, Complainant was informed by management that his low performance ratings were because the Safety Inspection was a "failure" and had numerous mistakes; however he subsequently learned on November 28, 2012, that there were no deficiencies noted in the Safety Inspection report.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 21, 2014, motion for a decision without a hearing and issued a decision without a hearing on June 27, 2014. Specifically, the AJ found that Complainant failed to establish a prima facie case of harassment because the actions complained of were insufficiently severe and pervasive to constitute harassment, and that even if they were, Complainant failed to show a nexus between the actions and his national origin, age, or his participation in EEO activity. The AJ further found that the Agency articulated legitimate nondiscriminatory reasons for its actions and Complainant failed to show that such reasons were a pretext to mask discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Disparate Treatment
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination.
With regard to claim 1, S1 averred that Complainant's leave request was denied because "[d]uring this time-frame there was a multi-national, multi-agency operation being conducted. During this timeframe there was a minimal amount of days off scheduled to meet operational needs. This operation had been planned/scheduled before the master leave schedule was approved in early February 2012." Report of Investigation (ROI), Tab F-3, p. 3. S1 further averred that other employees who had requested leave on the same dates as Complainant also had their requests denied. See id., pp. 3-4. With regard to claim 4, S1 averred that Complainant received an evaluation of "Achieved Expectations" and that in assigning this evaluation:
I looked at his performance in his daily assigning, monitoring and evaluating of work and weighted it higher than his assigning, monitoring and evaluating of work in his assigned program areas. Several of his assigned programs had fallen short of expectations. These included the Health and Safety Program and the Daily Inventory.
Id., p. 6.
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reasons are pretexts to mask discrimination, or otherwise show discrimination occurred. See Hicks; Burdine; McDonnell Douglas.
Following a review of the record we find that Complainant has not met this burden. With regard to claim 1, Complainant averred that:
[T]he Navy boat that was the focus of the 4th of July operation arrived on July 1st and departed on July 6th. Manpower was very low on the schedule for July 1st and 2nd while the Navy boat was in port. Since the Navy boat had already departed there was no reason to deny any of the days off on July 8th and 9th. I believe that started with my days off being denied.
ROI, Tab F-1, p. 4.
Complainant further averred that in order to provoke Complainant, S1 gave another coworker (CW1: national origin and age not provided) the days off that he had denied Complainant even though CW1 had not requested those days off. See id., p. 3. Finally we note that Complainant admitted that S1 also denied leave to others, although the national origin and ages of those others remains unspecified. See id., p. 4. The AJ found that, with regard to CW1, S1 averred that CW1 was the facility's only K-9 handler and he was given the days off because "other participating agency K-9 units" were available to work during those days. See ROI, Tab F-3, p. 4.
With regard to claim 4, the AJ found that Complainant "has offered no evidence to prove the reason for the lower rating was not his performance shortcomings but his membership in a protected class." AJ's Decision, p. 14. We agree. With regard to both claims 1 and 4, Complainant may well disagree with the Agency's actions but he has not shown that the Agency's articulated reasons for its actions are pretexts to mask discrimination or otherwise shown that the actions were taken because of his national origin, age or in retaliation for his involvement in EEO activity. We therefore discern no basis to disturb the AJ's findings in this matter.
Hostile Work Environment
We note initially that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant may not include claims 1 and 4 as part of his hostile work environment claim based on our finding that he failed to establish that any of the actions taken by the Agency in claims 1 and 4 were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000); See alos Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) (Guidance). The remaining allegations of hostile work environment therefore include the following: on July 2, 2012, Complainant was twice ordered to return to the facility after leaving and driving thirty minutes or more both times en route to an ongoing operation; on July 9, 2012, Complainant was subjected to offensive comments by management when his second level Supervisor (S2: White, 40 years old) called Complainant's use of one day for sick leave his "little vacation," accused Complainant of "leaving them hanging," said that Complainant was demanding respect from S1 and S2 "because of my old age, ... told me that I had not impressed him and that I had not volunteered for any extra duties ...he then told me that he didn't have any respect for me"; and after being told that his low evaluation was because a safety inspection had been a "failure" and had numerous mistakes, Complainant subsequently learned on November 28, 2012, that there were no deficiencies noted in the Safety Inspection report.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See Guidance at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
The AJ found that Complainant failed to establish that the alleged actions were sufficiently severe and/or pervasive enough to constitute harassment, and further found that Complainant failed to show that the actions were motivated by animus towards Complainant's protected classes or his EEO activity. With the exception of the incident wherein Complainant alleges that S2 said that Complainant was demanding respect because of his "old age" we agree with the AJ's finding that Complainant failed to show that the actions complained of either involved or were based on his age, national origin, or his EEO activity. We further agree with the AJ's finding that the actions complained of were insufficiently severe or pervasive to constitute harassment. We therefore find that the AJ's findings are supported by substantial evidence and we discern no basis to disturb the AJ's findings. Nor do we find any issue of material fact to warrant a full hearing.
Finally we note that on appeal, Complainant has requested to submit new, previously unavailable evidence concerning disciplinary action issued against S2 for allegedly "inappropriate/unethical behavior." We decline to accept such evidence on the grounds that, even assuming arguendo it reveals S2 to be a non-credible witness, that does not change the fact that S2's comments to Complainant, in addition to the other alleged actions, were insufficiently severe or pervasive to constitute harassment. We therefore deny the request.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing that discrimination occurred, and we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 19, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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